Volume 103 — Maryland Reports

<p>Plea — Admission of the Execution of Contract — Proof of Agency — Contracts — Mistake as to Identity of the Person.</p> <p>A declaration alleged that the defendant company made a written contract, set out in the declaration, by X, its duly authorized agent. The defendant pleaded the general issue and that the alleged contract was procured by the plaintiff’s fraud. Code, Art. 75, sec. 23. provides that when the execution of any written instrument filed in the cause is alleged in the pleadings, the same shall be taken as admitted, unless denied by the next succeeding pleading of the opposite party. Held, that the defendant’s failure to deny by his plea the execution of the contract relieved the plaintiff from the necessity of proving it, but did not admit that X was defendant’s agent authorized to make the contract.</p> <p>When the defendant in an action on a written contract alleged to have been made by his agent pleaded the general issue pleas and for a third-plea that the alleged contract was procured by the fraud of the plaintiff, this third plea does not estop the defendant from denying the authority of the agent.</p> <p>In an action against a principal on a contract alleged to have been made 'by his agent, evidence of the declarations and acts of the agent is not admissible against the defendant until there has been some proof aliunde to establish the fact of the agency.</p> <p>The evidence in this case examined and held to be legally sufficient to be submitted to the jury to prove that a certain party was defendant’s, agent and as such authorized to make the contract sued upon.</p> <p>A man who carried on business under the name of the Cambria Coal Company made a contract in that name with the defendant, who. thought that he was dealing with a corporation having a capital stock, when in reality there was no such corporation. Upon learning this fact defendant repudiated the agreement. Held, that the defendant intended to deal with the Cambria Coal Company and not with the individual trading under that name, and that consequently the contract was void on account of the defendant’s mistake as to the identity of the person with whom the contract was made.</p>

<p>Marshalling of Assets — Interest—Appeal.</p> <p>A was a creditor of an insolvent debtor with a junior lien on certain tin plate, and was entitled to have marshalled for his benefit various securities held by B, a prior creditor with a prior lien on the same goods. One of these securities was a mortgage executed to B by the insolvent, the validity of which was contested by the insolvent’s trustees. B accepted an offer to compromise the litigation relating to the mortgage after notifying A that he might continue the litigation concerning it at his own expense which offer A refused. Held, that under these circumstances B was not bound to persevere in the litigation concerning the mortgage, but was entitled to compromise his claim, and did not thereby forfeit his right to appropriate the other securities held by him to the payment of his debt.</p> <p>Upon a case stated a decree was made adjudging that A was not entitled to a first lien on certain goods and that he was a junior creditor of an insolvent debtor and as such entitled to have marshalled various securities held by B, as pledgee of the same debtor. Subsequently another decree was made adjudging that B was authorized to compromise certain litigation respecting one of the securities held by him without impairing his right to apply the other securities to the payment of his debt. Held, that upon an appeal from the second decree the questions decided by the first decree are not open to review.</p> <p>When a vendor by a wrongful stoppage in transitu of goods sold to an insolvent, who hád pledged the bills of lading, prevents delivery of the goods, he is liable for interest on their value.</p>

<p>Conspiracy to Defraud — Admissibility of Evidence — Statements Made by Third Party in the Interest of the Conspirators — False Pretenses — Cross-examination of the Accused When a Witness — Admissibility in Evidence of Papers taken from the Possession of the Accused.</p> <p>Upon the trial of an indictment for conspiracy, the acts and declarations of each co-conspirator, made during the progress of the conspiracy and in furtherance of its object, are admissible in evidence against the others, provided the fact of the conspiracy has been established by prima facie evidence. But it is within the discretion of the trial Court to admit in evidence the acts or declarations of one conspirator before the conspiracy itself has been sufficiently proved, when the prosecution undertakes to furnish such proof subsequently.</p> <p>The first count of an indictment against L, H and V charged them with a conspiracy to'defraud one Rose, and the second count charged ame parties with having obtained money from Rose by certain false pretenses relating to mining stock which Rose was induced to buy from L. One B, a third party, made statements to Rose about the mining stock in the presence of H, one of the traversers, and B participated in the efforts of H and V to interest Rose in the stock. Held, that evidence of these statements made by B was admissible against H and was also competent evidence against the other traverser when followed by proof of the conspiracy charge.</p> <p>But statements made by such third party to the prosecutor not in the presence of any of the traversers are not admissible in evidence.</p> <p>On an indictment for conspiracy, statements made by one of the conspirators after the object of the conspiracay had been accomplished are not admissible in evidence against the other conspirators.</p> <p>When parties are charged with obtaining money by false representations as to mining stock, which they induced the prqsecuting witness to buy, evidence is admissible to show that a pretended sale of the same stock was made to a third party in the presence of the prosecuting witness as an incentive to lead him to buy a like amount, and evidence is also admissible as to statements made at the time by such third party as a part of the res gestae.</p> <p>But evidence as' to statements made by such third party not in the presence of the traversers is incompetent.</p> <p>When a party charged with false pretenses in the sale of worthless mining stock is a witness in his own behalf, he may be cross-examined as to matters tending to show his knowledge of the worthlessness of the stock and all the circumstances of the transactions, without regard to the extent of the direct examination.</p> <p>After the arrest of the defendant on the charge of obtaining money by false representations as to mining stock which he induced the prosecuting witness to buy and pay for, a detective obtained from the hotel at which the defendant had stopped his valise containing certificates for 16,500 shares of the same stock, and a bogus certificate of deposit of the Chicago Land and Trust Company for $5,000, which the defendant had accepted in payment of stock which he had sold to a third party in the presence of the prosecuting witness. At that time the defendant had stated that he had only 14,500 shares of stock. At the trial upon an indictment charging conspiracy to defraud a designated person in the first count and obtaining money from him by false pretenses in the second count, the prosecutor offered in evidence the contents of the defendant’s valise “to prove the conspiracy to unload stocks on the people here.” Held, that this evidence is not admissible to prove the conspiracy charged in the indictment, but was admissible upon the second count to contradict defendant’s statements as to the amount of stock held by him and to show his guilty knowledge of its lack of value, and it is not necessary for the prosecution to first prove that the stock has no value.</p> <p>In order to show that the above-mentioned certificate of deposit was worthless, evidence of a police officer of Chicago is admissible to show that he had made an investigation of the alleged trust company and had seized its papers, including certificates of deposit like the one in question, that the name signed to it was fictitious, and that the trust company was not in existence at the time the certificate purported to have been issued.</p> <p>The fact that documents and chattels have been illegally taken from the possession of an accused party does not render them inadmissible in evidence against him, on the ground that they were taken in violation of his constitutional right to security against unlawful search or seizure of his property. If such documents are competent evidence the Court will not inquire as to the means by which they were procured.</p>

<p>Slander — Competency of Witness Not Named Í71 Bill of Particulars— Words Refl.ecÜ7ig Upo7i Chastity of a Woman — Bistruciions—Measure of Damages.</p> <p>When a bill of particulars is filed upon the demand of the defendant in an action of slander it is not necessary that the names of the witnesses upon whose evidence the plaintiff intends to rely should be set forth in the bill; and at the trial a witness for the plaintiff is competent to testify whose name does not appear upon the bill of particulars.</p> <p>Under Code, Art. 88, secs. 1 and 2, it is slander and per se actionable to utter to a third person any false words defaming the reputation for chastity of any woman, whether married or single. When the declaration alleges and the evidence shows that the defendant did utter such words concerning the plaintiff, and there is no claim of privilege or plea of justification, the plaintiff is entitled to recover therefor without proof of actual or special damage. Consequently in such action the jury is properly instructed that if they find from the evidence that the defendant uttered the slanderous words concerning the plaintiff set forth in the declaration, then their verdict must be for the plaintiff.</p> <p>In such an action of slander a prayer is proper which instructs the jury that if their verdict should be for the plaintiff they may find such damages as will compensate the plaintiff and adequately punish the defendant for uttering the slanderous words, and in finding said damages they may consider the means and wealth of the defendant.</p>

<p>Mortgage Sale — Mode of Offering Properly.</p> <p>Exceptions to tlie ratification of a mortgage sale of a tract of land containing fifty-four acres, improved by a dwelling-house and outbuildings, alleged that the land was sold as an entire tract whereas it should have been offered in small lots, and that if it had been so offered a much larger price would have been obtained and it would nofhave been necessary to sell all the land in order to pay the mortgage debt. The evidence examined and held not to support these allegations and consequently the order overruling the exceptions and ratifying the sale is affirmed.</p>

<p>When Deed of Separation a Bar to Bill for Divorce— Cause for Abandonment — Appeal—Oral Testimony in Equity — Evidence. ^</p> <p>A contract or deed between husband and wife providing for their separation is riot in itself a bar to a subsequent suit by one of them for divorce,, although it may in some cases be regarded as an acquiescence in the abandonment and hence a bar to a bill for a' divorce for that cause.</p> <p>A wife left her. husband without just cause and a year afterwards filed a bill asking for a divorce a mensa and alimony. The husband endeavored in good faith to induce her«to return to him, but she refused to do so. Then they executed a contract by which he agreed to pay her a certain sum of money and she agreed to release him from all claims. The money was paid and the bill for divorce dismissed. The contract did not expressly provide for their living apart, but it was made in contemplation of their separation. Held, that since the separation was not by mutual consent, or with the husband’s acquiescence, this contract, made in settlement of the wife’s suit, is not a bar to a bill by the husband for divorce on the ground of abandonment.</p> <p>That a husband speaks harshly and abusively to his wife on account of her having become a “Doweite,” i. e., the adherent of a new-fangled religion, is not a justification of her abandonment of him.</p> <p>When testimony is taken orally before the Court in an equity cause under Code, Art. 16, sec. 243, the rulings of the Court'as to the admissibility of evidence cannot be reviewed on appeal, when there is nothing in the record to show what the rulings were except a notation of the stenographer that the question was objected to, ruled inadmissible and exception noted. The correct practice in such case is either to file written exceptions, as is done when the evidence is taken before an examiner, or the rulings should be presented by a bill of exceptions or certificate of the Judge.</p> <p>Evidence to show the intention of the parties in executing a deed of separation is not admissible, but evidence is'admissible to show the circumstances surrounding its execution, such as the pendency of divorce proceedings, and the fact that the parties were then separated.</p>

<p>Appeal .from the Circuit Court of Baltimore City.</p>

<p>Right of Insurance Agent to Renewal Commissions — Construction of Contract.</p> <p>A and B, partners, were the agents of a life and accident insurance com- ' pany under a contract which provided that its termination should end all interest of the agents in renewal premiums and commissions thereon. After the expiration of this contract B was constituted the agent of the company under another contract, which stipulated that he should be entitled to commissions on premiums collected by him and to renewal premiums on policies secured by him. It was also provided that this contract should be an abrogation of all contracts of prior date between • the parties; that it might be terminated by either party upon thirty days’ notice; that B should be entitled to renewal commissions on premiums on policies personally secured by him as a member of the firm of A and B. The contract was terminated by B’s resignation of the agency. He subsequently claimed to be entitled to commissions on all renewal premiums accruing after his resignation on all policies secured by him as a member of the firm of A and 'B. Held, that upon the termination of the contract by B’s resignation of the agency, his right to commissions on the renewal premiums in question ceased, since the provision pro'viding for their payment was operative only so long as the contract was in force, and B continued to be the agent of the company and was a part of his compensation as such agent.</p>

<p>Collision at Crossing of Suburban Electric Railway — Extra Car Following Scheduled Car at Short Interval — Contributory Negligence.</p> <p>The fact that on a suburban electric railway an extra car is run at high speed over a public crossing close to the regular scheduled car is not evidence of negligence on the part of the railway, and does not relieve a person crossing the track from the duty of looking out for other cars after he has seen the scheduled car pass by. Such person is not justified in assuming that another car would not pass so soon after the first.</p> <p>Testimony that a person injured by collision with an electric car at a highway crossing in the country did not hear a gong sounded as the car approached is not per se evidence of negligence on the part of the railway, since it may be that a whistle, such as is frequently used on country electric cars, was blown, or other signal given.</p> <p>Plaintiff, driving at night in a wagon whose side curtains were down, approached the single track of an electric railway at a crossing in the country. The highway ran to the track at an acute angle and plaintiff was coming from Washington City. He stopped 130 feet from the track and, after looking and listening, saw the regular scheduled car from that city pass by, coming from behind him. At the point where he stopped he was unable to see more than about 250 feet of the track in the direction of the city. Knowing that the next scheduled car from the city would not pass for an hour, plaintiff drove on the track in a rapid walk, looking in front of him and not again stopping to look or listen for other cars, when his wagon was struck by an extra car, which followed the first at an interval of about fourteen seconds. Near the crossing the view of the track was unobstructed for half a mile. There was no evidence that the second car was not lighted as usual, and if plaintiff had either looked or listened after the passage of the first car, and as he came to the track, he could have become aware of the approach of the extra car. Held, that even if the railway company had been guilty of negligence, yet plaintiff’s contributory negligence was such as to preclude him from recovering damages for the injuries so inflicted.</p>

<p>Negligence — Res Ipsa Loquitur — Brick Falling from Chimney of House — Presumption—Sufficiency of Fvidence.</p> <p>The doctrine of res ipsa loquitur does not apply in an action of negligence when it appears from the plaintiff’s own evidence that the injury complained of may have been caused either by the defendant’s negligence or by some other act for which' the defendant is not responsible.</p> <p>When bricks fall from the chimney of a house and injure a passerby in the, street, and there is nothing to show why they fell, a presumption arises that they fell on account of the neglect of the owner or occupant of the house to keep the chimney in repair, and the burden is then upon such owner to show a state of facts which negatives that presumption.</p> <p>But when it is shown that the bricks may have been dislodged by third persons who were on the roof of the house without the knowledge or consent of the occupant, then he is not liable for the injury so caused in the absence of any evidence of his neglect to keep, the premises in. repair.</p> <p>While the infant plaintiff was standing on a sidewalk in front of defendant’s premises looking at a parade he was struck and injured by a brick which fell from the. chimney of the defendant’s house. Plaintiff’s evidence showed that certain .unknown persons had gone on the roof of the house from adjoining premises and had dislodged the bricks in the chimney by leaning against it. There was no evidence that these persons were in defendant’s employ or were on the roof with his knowledge or consent, or that the chimney was out of repair. Held, that since there is no evidence of any neglect on the part of the defendant the plaintiff is not entitled to recover for the injury so caused, and it was error to instruct the jury that if they find that the plaintiff was struck by a brick falling from defendant’s house their verdict must be for the plaintiff, unless the defendant proves that the falling of the brick was not caused by his negligence.</p> <p>When the evidence produced by the plaintiff is evenly balanced as to whether the injury inflicted upon him was the result of the defendant’s negligence or came from an independent cause, the jury have no right to adopt arbitrarily the theory that the defendant’s negligence was the proximate cause of the injury.</p>

) Plaintiff's ist. Prayer. — If the jury find from the evidence that on or about the 30th day of April, 1901, John H. and Earnest Langhammer and one Robert McClintock, deceased, were the owners of the schooner “Robert McClintock,” and that on or about the said date, the said owners through their duly authorized agents or brokers, entered into an agreement with the plaintiff to convey by means of said schooner “Robert McClintock” from three thousand to four thousand bushels…

<p>Appeal from the Circuit Court for Baltimore County (Fowler and Burke, JJ.)</p>

<p>Bigamy — Admissibility of Evidence — Impeaching Witness.</p> <p>In a prosecution for bigamy the testimony of the defendant’s first wife is admissible to prove the fact of their marriage, under Code, Art. 35, sec. 4, which provides that in all criminal proceedings the husband or wife of the accused party shall be competent to testify.</p> <p>When the prosecutrix has testified on the trial of an indictment for bigamy that she was married to the defendant at a certain time and place, it is not competent to impeach her credit and her veracity by evidence that before the alleged marriage the witness had lived in concubinage with another man, or with the defendant, or that she had afterwards stolen money from him.</p> <p>Upon the trial of an indictment for bigamy, evidence that the woman to whom the defendant was married while his former marriage was subsisting knew that he then had a wife living is irrelevant.</p>

<p>Elections and,Voters — Striking Name From Registry-^ Refusal of Board to Put Name on Szispected List — Petition to Strike of Name — Jurisdiction of Court.</p> <p>Code, Art. 33, sec. 26, relating to the registration of voters, directs that the Board of Registry of a ward shall note for erasure from the registries the names of all persons known or supposed to be dead or disqualified; that the board shall treat as persons suspected as not being qualified all those against whom a sworn complaint’is filed by any voter of the ward, but if a majority of the board know or are satisfied that such complaint is untrue, they need not note a name for erasure unless requited by a member of the board. Other sections provide for the giving of notice to suspected voters and the striking of their names from the registry if found to be disqualified. A man handed to one of the officers of registration of a ward in Baltimore City a list of registered voters in that ward alleged by him to be disqualified. This list was not sworn to nor was the man who proposed it shown to be a voter in that ward. The officer to whom the list was given had no personal knowledge or belief as to the disqualification of the voters there named, but presented it to the board and asked that the name of a certain voter on the list be placed upon the suspected list because the house from which he registered had since been destroyed by fire. It was- not alleged that this person was not a resident of the precinct. No action was taken by the board. Upon a petition to strike from the registry the name of the voter in question, held, that this evidence was not sufficient to require the Board of Registry to put the name on the suspected list and that the petition should be dismissed.</p> <p>Held, further, that a single member of the Board of Registry is not entitled to require the board to put upon the list of suspected voters the name of a registered voter without any inquiry as to the cause for which he is alleged to be disqualified.</p> <p>Code, Art. 33, sec. 24, provides that any person who feels aggrieved by the action of a Board of Registry in refusing to register him as a voter, or in erasing his name or that of any other person, or in registering or failing to erase the name of any ficticious, deceased or disqualified person may file a petition in Court asking to have the. registry corrected. Held, that when a Board of Registry refuses to put the name of a registered voter upon the suspected list, the Court is without jurisdiction to entertain a petition to strike that name from the registry. In such case the action of the board was not a refusal to erase the name of a disqualified person and no question as to the right of the voter was passed upon by the board.</p>

<p>Appeal from the Circuit Court for Kent County (Brown, J.)</p>

<p>Specific Performance — Injunction to Enforce Contract 'by Telephone Company Under Municipal Ordinance — Discretion of the Court.</p> <p>A bill to enjoin a telephone company from charging a higher rate for the use of its telephones than that which it had agreed to charge by a contract with a municipality under an ordinance, is in effect a bill for the specific performance of the contract.</p> <p>All the principles which apply to the case of a bill for specific performance apply to the case of a bill for a perpetual injunction when that injunction accomplishes all the objects which could be accomplished by a decree for specific performance.</p> <p>Specific execution of contracts in equity is not a matter of absolute right in the party applying, but of sound discretion in the Court, to be exercised upon a consideration of all the circumstances of each particular .case. When to decree specific performance would be inequitable, and would result in great injury to the defendant and be productive of little or no benefit to the plaintiff, the decree will be refused, and the plaintiff will be left to his action at law for breach of the contract. In 1896 the Maryland Telephone Company accepted the provisions of an ordinance of the Mayor and City Council of Baltimore, by which it agreed to furnish telephone service at a certain price per month to the public in consideration of the grant of the right to use the streets of the city. It was held on a former appeal that the acceptance of this ordinance constituted a contract between the city and the telephone com. pany for the benefit of the residents of the city, which they were entitled to enforce, but that the kind of telephone service to be supplied could not then be determined 6n demurrer to the bill. Upon a remand of the cause testimony was taken which left it uncertain whether the telephone service contemplated by the ordinance was a metallic circuit or the grounded service, both of which were in use when the ordinance was passed, but it was ruled that the ordinance should be construed as requiring the most effective service then in use. After the passage of the ordinance the Maryland Telephone Company installed the metallic circuit service, and increased the charge for the same over and above that mentioned in the ordinance, and the number of its subscribers increased from about eleven hundred to upwards of seventy-five hundred. The evidence shows that the cost of operating telephones increases in rapid ratio as the number of telephones increases, and that there would be a large annual deficit if the company should furnish metallic circuit telephones at the ordinance rate to the present number of subscribers, which would result in the bankruptcy of the company. The bill in this case was filed by eighteen subscribers at the old rate asking for an injunction to restrain the company from removing the telephones from their houses or .requiring them to pay the higher rates for the improved metallic service. Held, that since to grant the relief asked for would in all probability cause 'the insolvency of the company, and render it incapable of furnishing any service to the plaintiffs, and would defeat the purposes of the ordinance, the plaintiffs are not entitled to an injunction, but should be left to such remedies as they may have at law.</p>

) Plaintiff's ist Pra,yer. — The plaintiff prays the Court to rule as a matter of law that the defendant company is estopped from denying its liability on the policy sued on in this case if the Court sitting as a jury shall find from the evidence that the plaintiff had no knowledge of prior insurance on the life of the assured issued by the same company. {Refiised.) Plaintiff’s 2nd Prayer. — The plaintiff prays the Court to rule as a matter of law that the defendant company…

) Plaintiff’s Prayer. — If the jury believe from the evidence that the original defendant, Henry B. Keyser, on the 31st day July, 1896, being treasurer of the Maryland .Manufacturing and Construction Company and in charge of- the financial affairs of that company, presented to the witness Thomas, as president of the Merchants’ Bank of Baltimore, the two .notes offered in evidence, and that said Thomas said that he would not discount said notes unless they were endorsed by…

<p>Principal and Surety — Effect of Recovery Against Principal — Liability of Surety on Bond of Committee of Lunatic — Failure to Pay Money Into Court as Ordered — Equitable .Defenses— When Tender of Mortgage Debt Extinguishes Lien — Evidence.</p> <p>A recovery against the principal debtor in a bond, even though the sureties are not parties to the suit, is prima facie binding on the sureties, and they can only relieve themselves from the effect of the recovery against the principal by showing that the amount recovered was in ex. cess of the amount which the plaintiff in the judgment or decree was really entitled to recover, or that he was not entitled to recover at all.</p> <p>A decretal order directing the committee of a lunatic to bring into Court a sum of money is prima facie evidence that the money was owing to the lunatic’s estate in a suit against the surety on the bond of the committee, although the surety had no notice of the proceedings in which the order was passed.</p> <p>A suit on the bond of the committee of a lunatic may be maintained without the prior passage of an order of Court authorizing the suit to be instituted.</p> <p>In order to extinguish the lien of a mortgage by a tender of the amount due at maturity and its refusal by the mortgagee, the tender must be made by a person who has a right to pay the debt, such as the debtor himself, or the holder of the title to the property mortgaged, or the holder of some subsequent lien having an equity of redemption. The tender of the debt by a stranger does not extinguish the lien of the mortgage.</p> <p>In an action on the bond of a lunatic’s committee, who has failed to comply with an order of an equity Court requiring him to bring into Court a sum of money belonging to the lunatic, the proceedings in that Court under which the committee’s liability was established, and an auditor’s report showing the amount of the lunatic’s estate, which went into his hands, are admissible in evidence.</p> <p>The committee of a lunatic was authorized by a Court of equity which appointed him to invest $3,000 belonging to the lunatic in a first mortgage on designated property. The committee invested that amount in a second mortgage on the property. Thereupon the equity Court directed the committee to bring into Court the sum of $3,000 and removed him from the trust. Upon his failure to comply with this order the substituted committee of the lunatic brought this action against him and the surety on his bond, conditioned for the faithful performance of the trust reposed in him. The surety pleaded by way of equitable defense that upon the maturity of the first mortgage, it, the surety, tendered the amount of the debt to the mortgagee who refused it; that subsequently, but after the passage of the order directing the committtee to bring the $3,000 into Court, the surety paid the first mortgage and caused the same to be released, so that the second mortgage to the committee'became a first lien on the land; that the said order to the committee was passed without notice to the surety, and was not a final order, and not such as the surety could have appealed from; that the surety was never called upon by the equity Court to pay the $3,000 and the pending suit against it was not authorized by that Court, and that the surety is ready to pay the money into the equity Court on a proper order. Held, that a demurrer to this plea was properly sustained, since the facts alleged do not show that the lunatic’s estate is not entitled to recover the amount from the defaulting committee; that the order requiring the committee to bring the money into Court, imposed upon him a duty which was within the terms of the bond and not having been complied with he did not faithfully perform the trust reposed in him, and it makes no difference that the unauthorized second mortgage became a first lien on account of subsequent events.</p> <p>Held, further, that the evidence is legally sufficient to entitle the plaintiff to recover from the surety the amount owing by the committee to the lunatic’s estate, and the facts relied upon by the surety in the plea are not sufficient to overcome the liability of the committee established prima facie by the order of the equity Court.</p>

<p>Schools — Letters Held Not to be a Resignation by a Teacher — Insufficient Reason for Removal of Teacher — Powers of State Board of Education — Right to Salary by Teacher Improperly Removed.</p> <p>The principal of a county school wrote to the District School Trustees on December 23rd, 1903, announcing her approaching marriage and saying that she would continue to teach till the end of the scholastic year June 15th, 1904. On June 9th, 1904, she again wrote to the trustees saying : ‘‘If satisfactory to you I will teach another scholastic year.” On August 13th, 1904, the trustees notified her that her resignation was accepted and appointed another person principal of the school. Held, that these letters do not constitute a resignation of the position and there was no vacancy which the trustees were authorized to fill by the appointment of a new teacher.</p> <p>Code, Art. 77, sec. 49, provides as follows : ■ “Principal teachers shall be appointed by the Board of District School Trustees, subject to confir- • mation by the Board of County School Commissioners ; and said teachers may be removed at any time said Board of District School Trustees may think proper after thirty days notice in writing; provided further that the said Board of District School Trustees shall furnish in writing, when required by the teacher so notified, the reasons for dismissal ; provided further that the right of appeal shall lie .to the Board of County School Commissioners whose action in.confirming or rejecting the action of the district .trustees shall be final.” The district trustees of a school on September 9th, • 1904, notified the principal teacher that her services would not be required after October 10th. She demanded the reasons for her removal and in September 10th, the trustees replied that they believed it “for the best interest of the school.” Held, that this is not such a reason for the dismissal as is required by the statute.</p> <p>Held., further, that although the removal of the teacher was confirmed on appeal by the Board of County School Commissioners, yet that board had the authority afterwards to withdraw its confirmation when notified by the State Board of Education that their action was erroneous ; and the provision in said section 49 that the action of the County Board in • confirming or rejecting the action of the district trustees shall be final means only that it shall be final so far as the district trustees are concerned and was not designed to interfere with the powers vested in the State Board. ■</p> <p>Code, Art. 77, sec. 11, directs that the State Board of Education shall cause the provisions of this Article to be carried into effect and shall decide, without expense to the parties concerned, all controversies and disputes that arise under it and their decision shall be final. Held, that the Legislature had the right to confer this visitorial power on the State Board.</p> <p>When a teacher who has been wrongfully removed holds herself in readiiness to teach and was unable to obtain other employment during the time she was so prevented from teaching, she is entitled to compensation during such period, and it makes no difference that another teacher was employed in her place.</p>

<p>Municipal Corporations — Erection of Awning in Streets — Grant by Board of Estimates.</p> <p>The ordinance of Baltimore known as No. 116 of 1895 providing for the erection of awnings in the streets of that city upon the issue of permits therefor by the Inspector of Buildings is impliedly repealed by sec. 37 of the city charter as amended by the Act of 1900, ch. 109, which directs that the grant of any right to use any street of the city shall be embodied in an ordinance to be approved by the Board of Estimates, provided that the right to use the streets by any person for bow or bay windows, hitching posts, areaways, steps, planting of trees, storm-doors, drains and drain pipes, stands or other such temporary or similar uses may be granted by the Board of Estimates for such an amount of money and upon such terms and conditions as the said board may consider right and proper. An awning is a use similar to those enumerated. Consequently a party is not entitled to demand a permit from the Inspector of Buildings for the erection of an awning over a street unless the right has been granted by the Board of Estimates or by a municipal ordinance.</p>

<p>Appeal from the Circuit Court for Allegany County.</p>

<p> Taxation of Savings Banks. </p> <p>The decision in the preceding case of State v. The German Savings Bank declaring invalid the Act of 1904, ch. 212, followed.</p> <p>A savings bank which has a capital stock is subject to the franchise tax imposed by Code, Art. 81, sec. 86, on “every savings bank, institution or corporation organized for receiving deposits of money and paying interest thereon.”</p>

<p>Formation of Contract by Letter Enclosing Formal Agreement Unsigned — Right of Principal to Sue on Contract Made in Agent’s Name — Contract Under Seal — Measure of Damages for Breach of Contract to Sell Goods.</p> <p>An agreement for the sale of goods by A to B provided that a written contract should be executed by them. Afterwards A wrote to B enclosing a formal written contract containing the terms agreed upon with a request that it be executed and returned and saying that upon receipt the writer would forward a properly executed contract. B signed the contract and returned it to A, by whom it was retained, but A subsequently refused to execute and send to B the duplicate as promised and repudiated the agreement. Held,, that A was as effectually bound by his letter forwarding the contract for B’s signature, who executed it, as if he had signed and delivered a duplicate copy.</p> <p>Two persons to whom a contract for the erection of a building was awarded formed a corporation for the purpose of doing the work. The defendant agreed to sell a quantity of cement to the individual contractors, but was fully informed at the time that they were acting as agents for the corporation. Held, that the corporation is entitled to sue on the contract so made for its benefit upon the ground that a principal is authorized to maintain an action on a contract made for him by his agent in the agent’s own name.</p> <p>When a written contract concludes with the words: “Witness our hands and seals,” hut is signed and not sealed, it is valid as a simple contract.</p> <p>When parties stipulate that their agreement shall be put in the shape of a - written contract, one of them is not entitled to require that the written, contract shall be executed under seal.</p> <p>If a seller fails to deliver the goods sold and the buyer is compelled to purchase goods of the same quality in the open market at a higher price, the seller is liable for the difference between the contract price and that so paid by the buyer.</p>

<p>Building Contract — Bond of Contractor for Performance is Collateral —House Blown Down in the Course of Erection — Obligation to ReBuild — Entire Contract — Unpaid Installments — Duplicity in Pleading — Award of New Trial When Judgment Affirmed.</p> <p>When a contract for the erection of a building according to certain specifications provides also that the contractor shall give a bond conditioned for his faithful performance of the contract, the bond so given is collateral, and does not add to or change any of the terms of the contract, and the rights and liabilities of the parties under the contract are to be determined without reference to the bond.</p> <p>An unconditional contract for the erection of a building provided that the contractor should give a bond conditioned for his due performance. The bond stipulated that neither the principal nor the surety shall be liable for any damage resulting from an act of God. The building was destroyed by a storm before its completion. Held, that this provision in the bond has no effect on the liability of'the builder to restore the structure.</p> <p>When a house is blown down in the course of erection the loss falls on the contractor who agreed to erect it under an absolute, entire contract, and he is under an obligation to re-build and the owner of the land is under a corresponding implied obligation to permit him to re-build.</p> <p>A contract for the erection of a building, provided for the payment of part of the price in installments as the work progressed and the balance upon completion. The building was blown down by a storm of unusual violence before it was finished and at that time one of the installments was due and unpaid. The contractor although willing to replace the structure was prevented 6y the land owner from doing so. Held, that the contractor is entitled to maintain an action for the unpaid installment and also for the refusal to permit him to rebuild and perform the contract, but these two causes of action should not be combined in the same count of the declaration.</p> <p>A contract for the erection of a building for a fixed sum part of which is • to be paid in installment's as the work progresses and the balance upon its completion is an entire and not a divisible contract.</p> <p>When an entire contract stipulates for the payment of fixed sums periodically, an action lies to recover any of these payments, and in such case there may be several actions on the same contract.</p> <p>One count of the declaration alleged that after the destruction of the building which plaintiff was erecting for defendant by a storm, the defendant rescinded the contract and refused plaintiff permission to re-construct the building, and refused to pay a sum of money then due as an installment, and refused to pay the plaintiff for the large amount of materials he had provided and which were used by the defendant in rebuilding, and made an absolute breach of the contract, although the plaintiff was ready and willing to complete said building in accordance with the terms of the agreement. Held, that this count is bad on demurrer for duplicity, since it combines two distinct breaches of contract by the defendant.</p> <p>When a demurrer to a declaration is ruled good and the judgment for the defendant is affirmed on appeal, the case will nevertheless be remanded for a new trial if it appears that the plaintiff has a meritorious cause of action which, by amendment of the declaration, can be properly stated, since Code, Art. 5, sec. 22, provides that when it shall appear to this Court that a new trial ought to be had such new trial shall be awarded.</p>

2, of Baltimore City (Stockbridge, J.) The will referred to in the opinion of the Court is as follows: Ceci est mon testament.

<p>Appeal from the Circuit Court for Wicomico County (Page, Holland and Lloyd, JJ.)</p>

) Stock in trade, etc.............$67,516 Mrs. Wilkens, stock.......... 90,000 Mr. Schleus, stock............. 30,000 $187,516 It is perfectly apparent that if the action of… Held: the Bill of Rights prohibits the State from imposing upon domestic companies. In order to sustain this tax the Court must say that the payment by the stockholders in a foreign company of a tax on their shares does not exempt the company from the liability to pay a tax on the corporate property.

<p> Construction of a Will. </p> <p>A will gave to the testator’s son Robert “if living one thousand dollars, or if dead to go to his wife or widow Elizabeth.” The next paragraph of the will was: “Eight hundred dollars to Elizabeth Smith, one hundred dollars to her son Foster, one hundred dollars to her daughter Maud.” Held, that the bequest in the second paragraph is independent of the bequest to the testator’s son in the first paragraph, and not a mere direction for the mode of payment of that legacy in the contingency of Robert’s death, and that Elizabeth is entitled to eight hundred dollars and her children to two hundred dollars in addition to the legacy to Robert.</p>

<p>Compromise of Disputed Claim — Acceptance of Smaller Sum in Satisfaction of Larger.</p> <p>The amount due by a life insurance company to the beneficiary of a policy depended in this case upon what was the true age of the insured at the time he obtained the insurance. The company claimed that his age was not as stated in the application and the beneficiary was consequently induced to accept a smaller sum than would be payable if the statement as to age was. correct and executed a receipt in full of all claims under the policy. Held, that the transaction was not a compromise of a disputed claim so as to create an accord and satisfaction; that there was no consideration for the agreement to accept a smaller sum in satisfaction of the claim, and the beneficiary is entitled to recover the balance under the policy upon proof that the age of the; insured was correctly stated in the application.</p>

<p>Contracts — Admissibility af Parol Evidence to aid in Construction— Contract Partly in Writing and Partly by Parol — Measure of Damages — Striking out Evidence.</p> <p>When a written contract provides for the sale of the scrap iron remaining in a building which had been destroyed by fire, parol evidence is admissible on the part of both seller and buyer to show what articles were pointed out in the building as being for sale prior to the execution of the contract.</p> <p>When a buyer under a contract for the sale of the scrap iron in a buildtng testified that before making the contract the seller orally agreed to tear down the building and dispose of the structural steel therein, evidence of the seller to contradict this testimony is admissible and also to show which of the contracting parties was to perform the work of demolishing the building.</p> <p>A general motion to strike out certain evidence should be denied if any part of the evidence is admissible.</p> <p>In the construction of a written contract parol evidence is admissible as to the subject-matter and the surrounding circumstances when necessary to place the Court in the same situation as the parties who made the contract.</p> <p>Under a contract for the sale of the scrap iron in a building injured by fire, the structural steel therein is not necessarily included, and parol evidence is admissible to show whether the parties intended to include such material, and also to show whether the building was to be torn down and if so, by which party.</p> <p>Whether all the terms of the contract are contained in the writing exchanged between the parties is a qnestion for the jury, and not for the Court to rule as matter of law.</p> <p>When a contract provides for the sale of old material in a structure to be taken away by the buyer and the seller afterwards refused to permit the same to be removed, the measure of damages is the difference between the contract price and the market price at the time of the refusal.</p> <p>Defendant company, the owner of a power house injured by fire, asked the plaintiff by letter, dated June 7th, for a bid for the scrap iron as it lay therein, not including engines, generators, valves or piping. Plaintiff inspected the building in company with defendant’s agent to see what was to be sold and then wrote to the defendant, offering a certain sum “for all the old material which you have for sale at the power house, as per specifications mentioned” in the letter of June 7th. This offer was accepted. In an action to recover damages for defendant’s refusal to allow plaintiff to remove certain material, plaintiff testified that at the time of said inspection defendant’s agent agreed to tear the building down and sell him the structural steel, and also that the boilers were included in the contract. Held, that evidence of the defendant’s agent to contradict that of the plaintiff is admissible to show that neither- the structural material nor the boilers were pointed out to plaintiff as part of the material to be sold.</p> <p>Held, further, that it was error to rule that by the true construction of the contract the plaintiff bought and the defendant sold all the scrap iron in the power house not excepting the boiler room, save the material excepted in the letter of June 7th.</p>

<p>Appeal from Baltimore City Court (Dobler, J.)</p>

<p>Right of Unlicensed Real Estate Broker to Recover Commissions — Admissibility of Evidence — Appeal.</p> <p>Local Code, Art. 4, sec. 695, directs that real estate brokers in Baltimore City shall obtain and pay for a license authorizing them to carry on business, and sec. 696 provides that any person who shall act as a real estate broker without first obtaining a license Shall be deemed guilty of a misdemeanor and on conviction shall be subject to a fine for each offense, but the statute does not declare invalid a contract made by an unlicensed broker. Held, that the object of the statute is to raise revenue and not to render illegal the contracts made by a broker acting without a license, and that consequently an unlicensed broker may . recover compensation for services rendered by him.</p> <p>In an action to recover commissions for effecting a sale of certain property for the defendant, a letter from a third party concerning a sale of the property written before the beginning of the negotiations by the plaintiff is inadmissible in evidence because relating to a collateral and irrelevant matter.</p> <p>When the question as to whether all the necessary parties to an action were joined as parties plaintiff is not presented by any exception or ruling in the record, this Court is bound to assume that there was no ground for such objection.</p>

<p>Appeal from the Baltimore City Court (Stockbridge, J.)</p>

<p>Appeal from the Circuit Court for Washington County (Keedy, J.)</p>

<p>Appeal from the Circuit Court for Allegany County (R. R. Henderson, J.)</p>

<p>Construction of a Contract for the Manufacture and Sale of Paper According to Sample — Interpretation of a Cotitract by Acts of the Parties — Evidence— When Special Exception to Granted Prayer is Necessary — Harmless Error.</p> <p>Before bidding on a contract to supply the Federal Government with- a quantity of rope Manilla paper, the plaintiffs sent a sample of the paper-required to the defendant and inquired the terms upon which it would be supplied. After the exchange of several letters defendant agreed to furnish the desired quantity of paper which would comply with the Government requirements upon designated terms. Thereupon plaintiffs made a contract in their own names with the Government, but subsequently the defendant failed to supply any paper under its agreement. In an action for breach of the contract, the defense was that in making the bid and obtaining the contract the plaintiffs were acting as agents for the defendant company; that since the plaintiffs had put in a higher bid than that of which the defendant was notified, the defendant was discharged from any obligation; also that the defendant had not been informed, before making its contract, that the Government would subject the paper to a certain acid test to ascertain its correspondence with the sample, and that the defendant company could not make paper which would pass that test. Held, upon a construction of the contract, that the plaintiffs did not make the bid as agents of the defendant, but that the agreement between the parties was for a direct sale of the paper by the defendant to the plaintiffs.</p> <p>Held, further, that since the defendant company had agreed to furnish paper equal to the sample it was bound to know what tests such paper could undergo, and moreover, that after the defendant was notified of the requirement of the acid test it held itself out as able to furnish the required-paper, and thereby waived any right to object to the requirement of that test.</p> <p>The interpretation which the parties themselves place upon a contract by their acts in performance is to be considered in ascertaining the true construction of the contract and the intention of the parties. ■</p> <p>So where the question is whether the plaintiffs in bidding for and obtaining a public contract acted as agents for the defendant who was to manufacture the goods called for by the contract, or whether the defendant had agreed to sell the goods directly to the plaintiffs, the fact that the defendant did not see or ask for the contract made between the plaintiffs and the Government indicates that the defendant did not regard the plaintiffs as his agents.</p> <p>The objection that a granted prayer submitted a question of law to the finding of the jury cannot be urged on appeal unless a special exception to the prayer on that ground was taken in the trial Court, as is required by Code, Art. 5, sec. 9.</p> <p>The fact that a prayer relating to the measure of damages is abstract in form and does not sufficiently refer to the facts of the case in the application of the rule does not constitute reversible error when it is apparent that no injury to the appellant was thereby occasioned.</p> <p>In an action for breach of a contract by the defendant company to manufacture and furnish paper equal to a certain sample and in accordance with certain specifications, the following questions asked an officer of the defendant company were properly excluded: “Could you have furnished paper in accordance with the specifications and sample?” “What would you have said if you had been advised that paper would . not be accepted which contained sulphite pulp in greater quantity than the standard sample?” “What have you to say as to plaintiffs’ testimony that he did not know what kind of paper defendant’s factory made ?” “Can rope or jute paper be made from unbleached sulphite?” These questions are irrelevant.</p>

) The defendant’s prayer was that inasmuch as the agreed statement of facts shows that at the time the defendant was required to, and did make its reports under Code, Art. 81, secs. 150 and 156; that at the time the State Tax Commissioner assessed the value of each share of the capital stock of the defendant company; that at the time the State Tax Commissioner reported said valuation to the Appeal Tax Court; and that at the time the Appeal Tax Court valued said stock to…

<p>Ejectment — Description in Deed,— When Calls Prevail Over Courses and Distances — Instructions.</p> <p>One of the lines of a tract of land was described in the deed of conveyance by courses and distances and also as ‘ ‘running along the centre of a wagon road to be twenty feet wide.” There was a conflict between ' the course and distance of this line and the call for the wagon road as a boundary, and the evidence showed that the road had been regarded as the dividing line between the tract conveyed by the deed and that reserved by the grantor. Held, that it was for the jury to find whether such a road as that described in the deed existed, and also its location, and that the call for such road, if established, prevails over the description by course, distance and quantity, and that consequently the jury was properly instructed that if they find that the intent of the grantor, in the light of all the evidence, was to make the road referred 'to in the deed the boundary between the land granted and that portion reserved, and that such intent can only be gratified by adopting the centre of the road then existing, where the same does not conform to the courses and distances set out in the deed, then they could disregard the courses and distances where the same do not conform to the centre of the road and determine the boundaries of the grant by the centre line of the road.</p> <p>Held, further, that the appellant was not injured by the fact that this in_ struction contained the expression “intent of the grantor,” instead o “the intent of both parties to the deed.”</p> <p>Held, further, that a prayer was properly rejected which declared that the call in the deed to and along a wagon road to be twenty feet wide is not sufficiently certain to govern the description by courses and distances, and that quantity is to be taken as the controlling factor.</p>

) Defendants' rst Prayer. — That the findings of the jury in the Court of Common Pleas upon the issues framed on the paper writing dated April the 14th, 1903, are not conclusive upon-this jury in its findings upon the issues framed on the paper writing dated April the 30th, 1902, but the jury are to make their findings upon the evidence in this case.

<p>Limitations — When Payment is an Acknowledgment of the Existence of a Larger Indebtedness — Failure to Reply to Letter — Construction of Agreement.</p> <p>The bar of the Statute of Limitations against a claim is not removed by the acknowledgment arising from a part payment unless the payment be expressly made as in partial discharge of a larger sum then due so as to constitute an admission of the existence of the larger debt.</p> <p>The fact that a party to whom a check for a sum of money is sent writes a letter to which no reply is made, stating that he receives the same in part payment of his claim is not evidence to show that the payment made by the check was intended by the party making it as only a part payment and an admission of the existence of a larger indebtedness.</p> <p>Plaintiff was employed by a bank to conduct a certain business for it and retained the sum of $100 monthly for his services, and during their rendition claimed no larger compensation. The directors of the bank understood that plaintiff had agreed to do the work for that sum. The business so conducted by the plaintiff was sold to third parties, and • plaintiff turned over all the proceeds to the bank. He expressed dissatisfaction with the amount received by him and the bank paid him $1,000 additional in pursuance of a resolution expressing the same to be for his services. Plaintiff wrote a letter acknowledging its receipt as a part payment for his services. More than three years after the sale of the business plaintiff brought this action to recover additional compensation for his services. Held, that the Statute of Limitations is a bar to the claim and that the payment of $r,ooo by the bank under these circumstances was a gratuity and not such an acknowledgment of an existing indebtedness as removed the bar of the Statute of Limitations.</p> <p>Plaintiff was carrying on a business in his name but for the benefit of a bank, which supplied him with funds by discounting his notes endorsed by his brother. The bank executed an agreement by which it agreed to hold safe and harmless and to fully protect these parties on account of the making of the notes and to protect them from any liability by reason of the conduct of the business. After the business was closed out plaintiff claimed to be entitled to larger compensation than he had received during its continuance. The defendant bank pleaded limitations. Held, that the above-mentioned agreement has no relation to the amount of compensation plaintiff was entitled to receive for his services under his contract with the bank.</p>

<p>Wills — Caveat—Insufficiency of Evidence to Show Lack of Testamentary Capacity or Ignorance of Contents of Will — Hypothetical Question to Medical Expert — Instructions to the fury.</p> <p>When the evidence is clear and uncontradicted that the witnesses to a ■ will saw the testator sign the same and signed their names in the presence of the- testator and of each other, an instruction to the jury that their verdict upon an issue involving the execution of the will must be for the defendants, instead of leaving the finding of the facts to them, is not reversible error.</p> <p>The evidence produced by the caveators, upon the trial of an issue involving the capacity of the testator to make a valid deed or contract, examined and held to be legally insufficient to prove that the testator was mentally incompetent.</p> <p>The evidence in this case held to be insufficient as a matter of law to show that the testator at the time of executing his will did not know the contents thereof.</p> <p>When the evidence adduced to show that a testator was mentally incompetent at the time of the execution of the will is ruled by the Court to be insufficient as matter of law to authorize the jury to infer from it lack of testamentary capacity, then a hypothetical question embodying this evidence cannot be put to a medical expert for the purpose of showing that in his opinion these facts do indicate mental incapacity.</p>

<p>Assignment of Equitable Interest in Land Within the Statute of Frauds —Not Necessary to Plead the Statute — Agreement to buy and Sell Land and Divide the Profits Not Within the Statute of Frauds — No Action at Law by one Partner Against Another Until After Statement of Accounts.</p> <p>An agreement to transfer an equitable interest in lands is within the fourth section of tne Statute of Frauds and is unenforceable if not in writing.</p> <p>It is not necessary that the defense that the contract sued on is within , the Statute ofFrauds be set up by plea, but it may be relied' upon un- • der the general issue plea.</p> <p>An agreement between two parties to purchase, develop and sell certain lands for their joint account and to share the profits and losses of the venture is not an agreement for the sale of an interest in land within the Statute of Frauds and may validly be made by parol.</p> <p>Such an agreement constitutes the parties partners as to such purchase and sale of the land and either party is entitled to an accounting in equity fróm the other as to the profits of the joint transaction.</p> <p>But no action at law lies to recover a share of the profits received by one of the parties until there has been some settlement or statement of accounts between them.</p>

<p>Appeal from the Baltimore City Court (Wickes, J.)</p>

<p>A testator gave and bequeathed his estate to his wife in trust for her own use during her life, with full power and authority to use and expend from time to time not merely the income but any part of the principal, should she deem it for the best interest of herself and their children. After his wife’s death, the estate was bequeathed to a third party as trustee to pay the income to the two daughters of the testator, and the trust was to continue until their death. The testator’s wife, as trustee, held 3017 shares of the capital stock of a chemical company, and administered the estate under the direction of a Court of equity. She applied for an order of Court authorizing her to transfer absolutely to each of her two daughters, five hundred shares of the said stock. Held, that the power given to the trustee to use the principal of the estate was not intended to authorize any part of the corpus of the estate not consumed, to be transferred to the daughters, upon their marriage or coming of age, but the testator intended that the estate should be ■ held in trust so long as either his wife or their daughters lived.</p>

<p>Husband and Wife — Right of Surviving Husband in Personal Property Owned by Wife Under the Act of 1898, ch. 331.</p> <p>Under Code, Art. 93, secs. 291 to 306, a wife who survives her husband is entitled to one-third of his personal property absolutely, in case he leaves children; and the husband can not by his will defeat this provision. The Act of 1898, ch. 331, which went into effect on January 1st, 1899, provides that these sections of the Code shall apply to, and be enforced in favor of, surviving husbands so as to give to them the same rights in the estates of their deceased wives which are conferred upon widows in the estates of their deceased husbands. Held, that this Act is constitutional, and applies when the wife dies after the passage of the Act, although the parties were married prior thereto, and in such case the surviving husband is entitled to a distributive share of the personal property owned by her.</p> <p>When under the terms of a contract or settlement the interest on a fund owned by a wife is to be enjoyed by the husband during his life and upon „ his death is to go to the children of his wife, then upon the death of the wife the surviving husband is not entitled to a distributive share of such fund under the Act of 1898, ch. 331.</p> <p>The surviving husband is not entitled to a distributive share of an estate ■held in trust for his wife during her life and after her death in trust for such of her children as she should appoint to take the same, when she did make such appointment.</p> <p>The right to dispose of property by will may constitutionally be changed by statute.</p>

<p>Appeal from the Circuit Court No. 2, of Baltimore City, (Dennis, J.)</p>

<p>Depositions — Signature of Witness — General Objection to Deposition When Only Part of the Evidence is Inadmissible — Agreement Not Sufficiently Definite — Measure of Damages for Breach of Contract of Sale by Seller.</p> <p>When a commission is issed under Code, Art. 16, sec. 35, to take the testimony of non-resident witnesses on interrogatories sent with the commission, it is not necessary that each witness should sign his deposition separately. Even if the statute had required a signature it would be sufficient if the witness signed a separate certificate as to the truth of his testimony.</p> <p>The fact that some of the exhibits annexed to a deposition consist of copies of letters addressed to one of the parties, who had not been notified to produce the originals, is not a ground for the exclusion of all the evidence taken under the commission. Since the particular copies objected to were not designated in the general objection to the deposition it was properly overruled.</p> <p>A telegraphed to B: !l Ship one hundred at once and one hundred November twenty-fifth, eggs.” B replied by letter: “We are shipping the 100 today and have entered the order for the other for the 25th. These are good eggs.” Held, that the telegram and letter alone, and unaided by extrinsic evidence, do not constitute a definite contract, because the quantity, the quality and the price of the commodity and the time of payment are not stated, and no usage is relied on or given in evidence.</p> <p>Defendant ordered from plaintiff 200 cases of eggs to be shipped at two different times for a price aggregating $1,200. One hundred cases were shipped, and because the defendant refused to pay a draft for the price —$600, plaintiff refused to ship the other 100 cases Afterwards defendant remitted $420, and claimed that he had lost f 180 on account of plaintiff’s failure to deliver the second. 100 hases. In an action to recover the balance due held, that, even assuming that the plaintiff was liable for a breach of the contract in refusing to make the second delivery, yet a prayer is erroneous which instructs the jury that if the defendant suffered a loss equal to the plaintiff’s claim by reason of plaintiff’s failure to ship the second 100 cases, then the plaintiff cannot recover the unpaid balance. Such prayer fails to prescribe the standard by which the amount of the defendant’s loss is to be computed.</p> <p>The measure of damages for breach of a contract to deliver goods at a certain time and place is the difference between the contract price and the market price at that time and place, and not the difference between the contract price and the price for which the buyer agreed to sell the goods to third, parties.</p>

), where there was a judgment for the plaintiff for $10,000.

<p>Contracts — Legality—Agreement to Pay for the Return of Stolen Property.</p> <p>A contract by which a party agrees, to pay money for the return of his property which had been stolen is not illegal or against public policy, provided there is no stipulation to refrain from prosecuting the criminal or to compound the felony.</p> <p>Some months after defendant’s watch had been stolen from him a third party, acting as a go between, informed plaintiff that the watch was in the possession of a person in another State and that if defendant would páy a certain sum the watch would be returned to him. Plaintiff communicated this offer to the defendant who agreed to pay the money demanded. Thereupon the third party got the watch and informed the plaintiff that it was ready to be delivered upon receipt of the designated sum. Defendant gave to plaintiff a check for the amount, payable to the order of plaintiff. The check was cashed by the plaintiff at his own bank, upon his endorsement, and not at the bank upon which it was drawn; the money was paid by plaintiff to the intermediary and the watch delivered to the defendant. On the same day defendant stopped payment of his check and the plaintiff brought this action to recover the amount so paid by him. Held, that defendant’s agreement to pay for the return of his property was not illegal, and the plaintiff is entitled to recover.</p>

<p>Appeal from the Superior Court of Baltimore City (Baer, ].)</p>

<p>Wills— Testamentary Capacity — Medical Expert — Sufficiency of Evidence.</p> <p>The provisions of a will may be of such a character as to indicate the mental incapacity of the testator when considered in connection with other evidence.</p> <p>A testator whose estate amounted to $200,000, left surviving him a widow and two brothers, but no children. By his will he gave the income of his estate to his wife for life, and after her death he gave $10,000 to each of his brothers, $20,000 to his wife’s sister, $20,000 to her children and the residue to two friends and certain charities, in designated proportions. Held, that there is nothing in these provisions tending to create a suspicion as to the capacity of the testator. -</p> <p>Upon the trial of a caveat to a will a medical man, who had attended the testator professionally, testified that in his opinion the testator was incompetent to make a valid deed or contract, and gave as his reason for that opinion that the testator suffered from chronic Blight’s disease and that is a disease which must result, eventually, in causing mental deterioration. The witness testified to no conduct or words of the testator indicative of incapacity, and there was no evidence in the case to show that the disease had actually impaired the testator’s mind at the time of executing the will or that he was then in fact, from any cause, mentally incompetent. Held, that this evidence is legally insufficient to overcome the presumption of sanity and competency, or to prove that the testator did not possess testamentary capacity.</p>

<p>Bill in Equity by Receiver of Corporation to Hold Directors Accountable for Negligence or Illegality in Management— When Such Bill is Multifarious — Amendment of Bill — Limitations—Liability of Distributee of Deceased Director.</p> <p>Equity, has jurisdiction of a suit by the receiver of a corporation against its former directors to hold them accountable for losses incurred in consequence of their negligence in the management of the corporation and their acts done in violation of statute.</p> <p>There is a distinction between the right of a corporation to proceed against delinquent directors for their fraud or negligence in the conduct of the affairs of the corporation and the right of the shareholders to recover from directors for losses suffered by them in consequence of such fraud or negligence.</p> <p>A bill was filed by the receiver of a bank against sixteen persons who had been directors of a bank at different times and against the executor and distributees of a deceased director. The bill alleged that the directors during their respective periods of service had permitted loans in excess of one-tenth of the capital to be made to certain persons in violation of sec.- 5200 of the Revised Statutes of the United States, also that dividends had been declared which were not justified by the financial condition of the bank. The bill complained -of thirty specific acts. Some of the defendants were directors only while two of these acts were committed; other directors were connected with only three transactions, and one of the defendants with only four loans and one declaration of dividend alleged to have been illegal. Held, that the bill is multifarious as to those defendants who had ceased to be directors when most of the alleged illegal acts were done, but it is not multifarious as to those defendants who were directors throughout the period covered by the bill, although many different causes of complaint are therein set forth.</p> <p>When a bill in equity is multifarious as to some defendants and not as to others, it is not necessary to dismiss the bill in toto, but leave may be granted to the plaintiff to- amend so as to remove the objection of multifariousness.</p> <p>The Statute of Limitations is a bar to a bill against a director of a corporation to recover for his misconduct as such in improperly declaring a dividend, filed more than three years after he had ceased to be a di - rector.</p> <p>When a bill alleges that the defendant directors of a bank made certain loans in violation of statute but does not allege that the bank sustained any loss by reason thereof, and it is not shown when the loans were due, and the defendants ceased to be directors more than three years before the bill was filed, then the defense of the Statute of Limitations cannot be relied on under a general demurrer to the bill, since the cause of action would not necessarily accrue at the date of the loans, but the facts relied upon as entitling the defendants to the benefit of the statute must be set up by plea or answer.</p> <p>A director of a corporation is not a technical trustee for the shareholders and creditors but is only an implied or constructive trustee, and the Statute of Limitations runs in his favor.</p> <p>Upon a bill "by the receiver of a bank against directors to recover losses incurred on loans made by them in violation of statute and for the improper declaration of dividends, then if the creditors of the bank have been paid, the receeiver is not entitled to recover for the benefit of the stockholders by reason of the declaration of the dividends, inasmuch as they were received by the stockholders.</p> <p>When a bill by a receiver of a bank against the distributees of a deceased director to recover on account of his misconduct in the management of the affairs of the bank does not state that the deceased director left any estate, or that those named as distributees had received anything from it, a demurrer to the bill should be sustained, since a bill should show on its face that the defendants are in some way liable to the plaintiff.</p>

<p>Execution — Claimant of Property Seized — Trial of Question of Ownership— When Bond by Claimant is Necessary — Equitable Estoppel to Assert Ownershtp — Pleas—Judgment—Instructions.</p> <p>Under an execution issued on a judgment against a husband certain personal property was seized which was alleged by his wife to belong to her. She filed a petition setting forth her claim as is provided for by Code, Art. 9, sec. 47. That statute also provides for the docketing of a suit by the claimant against the plaintiff and defendant in the execution, and that if the claimant establishes title to the property he shall be entitled to damages for the seizure, and also that the property shall be discharged from the levy upon the filing of a bond by such claimant. In this case no bond was filed and the property seized was sold under the execution. Upon the trial of the case between the claimant and the parties to the execution, held, that a motion to quash the claim should not be granted merely because the property taken in execution had been sold, since the question involved was one of title and it was . not necessary that the claimant should file a bond in order to have that question determined.</p> <p>Held, further, that the fact that the claimant was the wife of the defendant in the execution was not a ground for granting the motion to quash the claim, since the question as to the disability of a plaintiff to sue must be raised by a plea of abatement and not by a motion to quash.</p> <p>To a claim of ownership of property seized under execution issued against a third party, the plaintiff in the execution filed a plea upon equitable grounds setting forth certain facts which it was alleged operated as an equitable estoppel to the claimant to assert a claim to the property. Held, that a demurrer to this plea was properly sustained since this defense could have been offered in evidence under the pleas at law.</p> <p>The wife of a man who operated a saw mill, bought with her own money certain'horses and wagons, which were used by her husband in hauling timber and lumber to and from the mill. A man employed as a sawyer recovered a judgment against the husband for wages, and issued an execution under which said horses and wagons were seized. The judgment debtor’s wife filed a claim to the property seized under Code, Art. 9, sec. 47, and a case was docketed by her against the plaintiff and the defendant. The plaintiff in the judgment testified that he had been induced to give credit to the defendant because he thought he was the owner of the horses and wagons but there was no evidence that the claimant did anything to induce him to believe that said property belonged to the defendant. Held, that the jury was properly instructed that if they find the above-mentioned facts their verdict must be for the claimant.</p> <p>Held, further, that the verdict being for the claimant for the property seized and against the plaintiff in the execution it was not necessary that the verdict and the judgment entered thereon should also include a finding against the defendant in the execution, and consequently a motion in arrest of the judgment was properly overruled.</p>

<p>Land, 'Purchased, by Husband With Wife's Money Under Oral Agreement to Secure Payment — Compensation Decreed When Specific Performance Refused — Laches— Competency of Witness — Admissions.</p> <p>When land has been purchased with money supplied in part by the plaintiff on the faith of an oral promise to convey a portion of the land, then, although specific performance of the agreement cannot be decreed on account of the Statute of Frauds, the plaintiff is entitled to compensation to the extent of the money advanced.</p> <p>The husband of the plaintiff purchased a farm from a trustee in an equity case and paid one-third of the purchase money. The sale was ratified, but before payment of the balance due one H, who owned the land and would have been entitled to the proceeds of sale died, leaving the plaintiff as his only distributee. An arrangement was made by which th e administrator of H stated an account charging himself with the receipt of the purchase money and accepting a release from the plaintiff for her share of H’s estate, it being the understanding of the parties that such charge and release should constitute the payment of the purchase-money of the farm. The plaintiff’s husband told her that a conveyance would be made to her to secure her interest in the land. No such conveyance was made nor was one ever executed by the trustee in the equity cause. Plaintiff and her husband lived together on the farm for nearly thirty years, when he died intestate. Plaintiff then filed the bill in this case asking for a sale of the land to satisfy her claim for the portion of the purchase-money so paid by her. Held, that the evidence establishes the allegations of the bill, and, although the contract by which the plaintiff’s husband agreed to convey to her a part of the land cannot be enforced because not in writing, as required by the Statute of Frauds, yet she is entitled to compensation to the extent to which her money was used in the purchase of the land..</p> <p>Held, further, that since plaintiff’s delay in asserting her claim is satisfactorily accounted for, and no one has been injured by the delay, laches is not a defense to the bill.</p> <p>Held, further, that the Statute of Limitations, as contained in Code, Art. 57, sec. 3, is not applicable to the plaintiff’s claim.</p> <p>When a bill is filed by a widow to enforce a claim against land purchased by her husband, on the ground that the purchase money was supplied by her and that her husband promised to give her security therefor, she is not a competent witness to prove such agreement, but a daughter of the deceased, who is one of the defendants, is a competent witness on the call of the plaintiff, under Code, Art. 35, sec. 3.</p> <p>When the question is whether a party furnished the money used by another in the purchase of land, documentary evidence, such as Court records, is admissible to show that that party was possessed of the means to make the advance.</p> <p>Admissions made by a husband to his wife in the presence of third parties to the effect that he had received from her money with which certain land was bought, and that he would give her a conveyance of a part of the land in consideration of such advance, are admissible in evidence, on a bill to enforce the claim against the heirs at law of the husband.</p>

<p>Appeal from the Orphans’ Court of Baltimore City.</p>

<p>Appeal from the Criminal Court of Baltimore City (Harlan, J.)</p>

<p> Taxation of Real Estate in the Annexed District of Baltimore City. </p> <p>The Act of 1888, chap. 98, by which certain territory was annexed to Baltimore City, provided that until the year 1900 the rate of taxation on property within the annexed territory should not exceed the then existing county tax rate, and that then from and after the year 1900 the property, real and personal, within the said territory should be liable to taxation and assessment in the same manner as similar property within the city limits, provided, however, that the county rate of taxation shall not be increased on any landed property within the said territory until streets shall have been opened and constructed through the same, nor until there shall be upon every block of ground so to be formed at least six dwellings or store-houses ready for occupancy. The Act of 1902, chap. 130, directed that this reference to streets shall be construed to mean until streets or alleys shall have been opened, graded and otherwise improved from kerb to kerb by pavement, whether such property be improved or unimproved. The plaintiff was the owner of a lot of ground in the annexed district situated in a block bounded on all sides by streets fully paved in 1900. The block contains two dwellings, two churches, a cobbler’s shop, a factory and a shed, but the plaintiff alleged that since it did not contain six dwellings or store-houses, it was not liable to the city rate of taxation. Held, that the property in this block is not landed property within the meaning of either the Annexation Act of 1888 or the Act of 1902, chap. 130, but is improved city property, similar to other property within the old city limits, and is liable to the city rate of taxation.</p>

<p>Witness— Competency — Properly alleged to Have Been Withheld From Inventory by Executor and Trustee — Sufficiency of Evidence — Presumpiion as to Ownership — Decree in Conformity With the Evidence and Not the Allegations — Exceptions—Appeal.</p> <p>When an executor and testamentary trustee alleges that certain property '. once belonging to the testator had been given or transferred to him, he . is not a competent witness, under Code,, Art. 35, sec. 3, to testify as to transactions with, or statements made by the testator.</p> <p>When two men deposit bonds -with a trust company receiving therefor a a certificate of deposit in their joint names, the presumption is that they are co-owners of the bonds.</p> <p>This presumption is not overcome by evidence of the declarations of one - of the men to third parties that he did not own any bonds.</p> <p>Upon a petition in equity by a cestui que trust against an executor and testamentary trustee, alleging that he had not returned in the inventory or accounted for property belonging to the trust estate which had come into his possession as executor or trustee, the evidence examined and held to establish'that certain property belonged to the trust estate and ■ should be accounted for by the trustee.</p> <p>When no objection is made to the sufficiency of the averments of a bill or petition in equity, it is the duty of the Court to decree according to the proofs, and the objection that the relief decreed was not in conformity with the relief asked for, cannot be availed of on appeal, since Code, Art. 5, sec. 36, provides that no objection to the sufficiency of the averments of a bill or petition in equity shall be made in the Court of Appeals unless it shall appear from the record that such objection was made by exceptions filed in the trial Court.</p> <p>The noting of an exception to testimony before an examiner is not a compliance with this provision of the Code when no exception is after-wards filed in the cause.</p>

<p>Appeal from the Superior' Court of Baltimore (Phelps, J.)</p>

<p>Devise to Vestry Held Not to Create a Trust — Misnomer—Power Repugnant to Absolute Gift.</p> <p>Certain land was devised to the vestry of a church “to be used for such church purposes as the rector of said church shall or may direct, it being my purpose that the said land and buildings shall be under the control of the rector of the church and shall be used for such church .work as he may deem for the best interest of the church.” Held, that this devise does not create a trust void for uncertainty as to its purpose and beneficiary, but it is a devise to the vestry of a fee-simple estate, free from any trust, for its general and corporate purposes.</p> <p>Held, further, that the power given to the rector to designate- the church work for which the land is to be used is a collateral power repugnant to the absolute fee devised to the vestry and is for that reason void.</p> <p>A deed or will does not create a trust unless there be a separation of the legal estate from the beneficial enjoyment, and a trust cannot exist when the same person possesses both.</p> <p>The Vestry of the Parish of the Ascension of Carroll County is entitled to take under a devise to the “Vestry of Ascension Church, Ascension Parish, in Westminster, Carroll County,” when it was the intention of - the testator that the former should be the devisee.</p>

<p>Libel — Publication Libellous per se as to Conduct of Vestryman — Demurrer to Declaration — Innuendo—Question for fury.</p> <p>The declaration in action of libel set forth that the defendant falsely published of the plaintiff and certain other members of the vestry of a church, constituting the majority, that they had “relentlessly turned their back upon legal and moral obligation to the detriment of a rector who suffered 'himself to become debilitated while plodding along the path of duty;” also that in order to remove opposition to his re-election as vestryman the plaintiff had promised not to call a certain rector unless it was satisfactory to the church, and that plaintiff had violated his promise. Upon demurrer held that by a fair construction of the words declared on, with the aid of the other averments of the declaration, it appears that these words were intended to apply to the plaintiff individually.</p> <p>Held, further, that these publications are libellous in law.</p> <p>To publish of plaintiff and other members of a vestry that they promised not to call a certain person as rector and because of said promise no effort was made to change the vestry is not in itself libellous.</p> <p>When a declaration alleges that a publication which denounces the action of a corporate body was intendéd to apply to the plaintiff and was so understood by the readers of the publication, it is a question for the jury whether these allegations are true or not.</p> <p>Upon demurrer to a declaration in libel it is for the Court to determine whether the words charged amount in law to libel or not, and also whether an innuendo is fairly warranted by the language declared on when read either alone or in connection with the inducement and colloquium.</p> <p>The innuendo cannot impute to the words declared on a meaning which those words in themselves or taken in connectiou with the inducement or colloquium does not fairly warrant.</p>

<p>Appeal from the Circuit Court for Baltimore County.</p>

<p> Sale of Liquor on Sunday in Anne Arundel County. </p>

<p>Appeal from the Circuit Co'urt of Baltimore City.</p>

<p>Appeal from Circuit Court No. 2, of Baltimore City.</p>

<p>Appeal from the Circuit Court for Wicomico County.</p>